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self-study / Criminal Law

Navigating the law of Domestic Violence Restraining Orders

Birnbaum robin web

Robin Birnbaum

Founder, Birnbaum Family Law

Email: robin@birnbaumfamilylaw.com

Robin is a certified family law specialist by the State Bar Board of Legal Specialization. Her experience as a mediator, litigator and Minor's Counsel gives her a unique perspective into the practice of family law and she is able to offer creative and strategic solutions to address the most challenging and complex family law matters, including child custody, domestic violence and support.

Atuegbu jillian web

Jillian E. Atuegbu

Founder, J.E.A. Family Law

Email: jillian@jeafamilylaw.com

Jillian is a certified family law specialist by the State Bar Board of Legal Specialization Her practice is devoted exclusively to family law matters. She understands and recognizes how incredibly stressful and life-altering separating from a spouse or partner can be. She ensures that she has a clear understanding of her client's goals, while providing practical solutions based in the law.

In the last decade, a myriad of laws have been passed giving the courts broad power to protect victims, family or other household members in cases involving domestic violence, stalking, and gun violence. The goal of this article is to provide attorneys with practical information relating to the issuance of domestic violence restraining orders and the statutory authorities in support thereof.

Practice pointer: Some counties may have observed a rise in domestic violence filings, likely due, in part, to a more expansive view of what constitutes abuse, as defined under current case law. It is important to note that abuse is not limited to physical violence nor is it necessary as part of your prima facie case. See Family Code Section 6203(b).

Required Relationship Between the Parties

For a domestic violence restraining order, the petitioner must have a relationship with the respondent that falls into specific categories -- e.g. spouse, former spouse, cohabitant, former cohabitant, a dating relationship (past or present), an engagement relationship (past or present), parties who have a child together, child of the party, child subject to a paternity action, and any other person related by consanguinity or affinity within the second degree. See Family Code Section 6211. A minor child, 12 years of age or older can seek a protective order, without a guardian, counsel, or a guardian ad litem. See Code of Civil Procedure Section 372(b)(1). The court, by motion or upon its own discretion, can appoint a guardian ad litem to assist the minor. A minor under 12 years of age, accompanied by a duly appointed and acting guardian ad litem, is permitted to appear in court without counsel for the limited purpose of requesting or opposing a request for a TRO. See Code of Civil Procedure Section 374 and Family Code Section 6229.

Practice pointer: Review the chart of consanguinity, if ever there is a question as to a qualifying relationship between the parties. If there is not a qualifying relationship between the parties, as required, a civil harassment restraining order may be appropriate.

Standard of Proof to Issue a Temporary Restraining Order

If an affidavit shows, to the satisfaction of the court, reasonable proof of a past or past acts of abuse, then a restraining order may be issued.See Family Code Section 6300(a). The court is looking for a past incident of abuse, threat of abuse, stalking, sexual assault or behavior that can be enjoined. See Family Code Sections 6300(a), 6320(a) and 6203

Time Requirements for Issuance/Denial of Temporary Restraining Order

An ex parte order shall be issued or denied on the same day that the application is submitted to the court, unless the application is filed too late in the day to permit effective review, in which case the order shall be issued or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court. A petition for an ex parte order shall not be denied solely because the other party was not provided with notice. See Family Code Section 6326. An order denying a petition for an ex parte order must include the reasons for denying the petition. See Family Code Section 6320.5(a)

Practice Pointers for Drafting the Affidavit for a Domestic Violence Restraining Order

Petitioners are required to complete, file, and cause to be served a request for domestic violence restraining order (Form DV-100) to set forth the instance(s) of abuse, among other required documents. See Form DV-505-INFO. Although general allegations are sufficient to put the respondent on notice of the basis for petitioner's requested relief (see In re Marriage of Davila & Mejia, 29 Cal. App. 5th 220 (2018)), it is best to include as many relevant details as possible, to aid the bench officer in determining whether or not to grant the TRO.

Bear in mind that most bench officers do not have an abundance of time when reviewing ex parte requests. To aid the court, and your client, use the strongest terms possible that are truthful to describe the most recent and egregious act or acts of domestic abuse. Be as explicit as possible when describing the act or acts whether physical, emotional, verbal, financial, etc. Avoid general terms and be specific as to date, time, and witnesses with respect to each individual incident.

Timing for Hearing on a Request for a Domestic Violence Restraining Order

An order granting or denying a petition for a domestic violence restraining order must provide the petitioner with a right to a noticed hearing no later than 21 days, or, if good cause appears to the court, 25 days from the date of the order. See Family Code Section 242. A temporary restraining order, if granted, is valid until the date of the hearing. See Family Code Section 242(a).

Service Requirement for a Domestic Violence Restraining Order

At least five days before the hearing, the petitioner must cause the respondent to be personally served with copies of all supporting papers filed with the court including the application and affidavits. See Family Code Section 6320.5(b)

Practice pointer: Upon a proper showing to the court, there are alternative service options available for respondents who are evading service (i.e., substituted service, posting, and publication). See Family Code Section 6340(a)(2)(A) and Form DV-205-INFO.

Types of Relief That Can Be Requested within a Domestic Violence Restraining Order

Ex parte orders may be made concerning any of the following matters:

(1) Personal conduct restraint/stay-away orders. See Family Code Section 6320(a).

(2) Protection of animals. See Family Code Section 6320(b).

(3) Residence exclusion. See Family Code Section 6321 (Practice pointer: A residence exclusion order may be appropriate if two people live together but the dwelling is in only one party's name, provided that the party has lived in the dwelling long enough that they would be entitled to a 30-day eviction notice. See California Civil Code Section 1946.)

(4) Temporary custody and visitation of minors. See Family Code Section 6323

(5) Property orders (real and personal property). See Family Code Section 6324

(6) Community property orders. See Family Code Sections 6325.

(7) Prohibition of restrained party taking any action to obtain the address or location of a protected party. See Family Code Section 6322.7(a)

(8) Insurance or other coverage. See Family Code Section 6325.5.

How to Prepare the Case for Hearing

Preparation is key to an organized presentation of your client's facts and the relevant legal arguments. In an effort to conform your client's allegations to Form DV-100, it is best to address the most recent instance of abuse first, and then follow with subsequent incidents of abuse thereafter.

It is important to contact the percipient witness(es) who have personal knowledge of the abuse. Know your judge and local rules as to the bench officer's procedures regarding receiving live testimony at the initial hearing. Some witnesses may not appear in court, absent a subpoena; make sure to adhere to specific rules and notice requirements for potential witnesses.

Obtain evidence and documentation of abuse (e.g., police reports, medical reports, pictures of injury(ies), pictures of physical damage, pictures of weapons used/or threatened to be used against the victim, 911 calls/tapes, certified copies of relevant criminal convictions of the abuse, personal calendar/diary in which the victim documented the abuse as it happened).

Practice pointer: Make sure to subpoena records and/or be prepared for evidentiary objections to documents and images.

Go through the incidents with your client at length so that your client can discuss the incident(s) of abuse in an organized and clear manner. When describing physical injuries, ensure that your client can describe how they were hit, where on the body they were hit, how many times, what type of pain or injuries they suffered, whether or not a weapon or object was used. etc. For incidents of emotional abuse, be explicit as to the exact words and/or phrasing so that the bench officer can easily picture what occurred and the reasonableness of fear.

If your client is unfamiliar with court proceedings, as most litigants are, encourage him/her to observe a domestic violence court proceeding. Typically, domestic violence hearings are open to the public, and it may be helpful for your client to see how the bench officer handles these types of cases to hopefully reduce the fear and anxiety surrounding testifying in court.

Prepare for the Possibility of a Continuance of the First Hearing

The respondent is entitled to one continuance as a matter of course to respond to the request for a domestic violence restraining order. See Family Code Section 245(a). Therefore, it is important to communicate with your client and witnesses about the possibility of the first hearing not going forward as planned. Additionally, depending on the judicial officer's calendar, lengthier hearings may need to be reset to a different date and/or time.

Advising the Respondent in a Restraining Order Matter

Advising the respondent does require skill and discernment. The issuance of a restraining order after hearing can have a negative impact on the respondent's employment prospects and child custody and visitation orders. See Family Code Section 3044. This is particularly important if the respondent is the higher wage earner. If the respondent was arrested due to an incident that gave rise to the TRO, you may want to associate in/confer with a criminal defense attorney to ensure that the respondent's rights are not unknowingly/unintentionally waived. Even if the respondent was not arrested, it is best practice to ensure that you are conferring with a criminal defense attorney with respect to the appropriateness of filing a written response to the request for a domestic violence restraining order as well as to facilitate the scope of the direct examination and potential cross examination pitfalls related to your client's intended testimony.

Standard of Proof for Issuance of a Restraining Order After Hearing/Duration of Orders

The standard of proof for domestic violence matters is a preponderance of evidence. See Evidence Code Section 115. In the court's discretion, the personal conduct, stay away, and residence exclusion orders may have a duration of up to five years. See Family Section 6345

Practice pointer: Since the standard of proof is relatively low, it is imperative that you advise your client accordingly. If the court finds the petitioner to be credible, it is necessary to advise the respondent about the ramifications of a domestic violence restraining order and the associated findings therewith (i.e., Family Code Section 3044 presumption).

Conclusion

Attorneys who represent clients, whether the restrained or the protected party, should be uniquely qualified to deal with the attendant emotional, psychological, and economic impact domestic violence litigation has on both parties and their children. It is critical to be as upfront and honest with your client as to the best- and worst-case scenarios as it pertains to child custody, child visitation, spousal support, and property division. 

#633

Ben Armistead


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